Trans People – Not Quite Human?

It would have been almost 10 years ago now that I stood on a railway bridge and pondered my future. The thing that kept me from jumping then was a belief that I had some innate worth as a human being – that it would be better for me to be alive than dead. At times, particularly in the early months of transition, it was tough to hold on to that belief – when it looked as though my marriage had hit the rocks, when my son was having problems at school, when I lost my job. But, hold on to it, I did.

Also, around 10 years ago, the Gender Recognition Act was being debated in Parliament. Christine Burns was part of the team of trans activists who were negotiating with government ministers and civil servants. One of the battles they fought, and sadly lost, was the right for gender recognition irrespective of marital status. Her blog, written at the time the consultation for the Same Sex Marriage Act 2013 had started, details the political inconvenience that trans people like me, who had somehow managed to retain our marriages, caused. Christine describes us as being thrown away in 2004 as a bargaining chip – our marriages deemed to be less important than keeping religious objectors to civil partnerships on-side, despite the human rights arguments saying the opposite.

Over the past few months I’ve been fairly prominent in highlighting what I and others see as the injustices imposed by the new Act, foremost of which is the reintroduction of spousal consent into English law specifically and uniquely for trans people. I’ve really regretted sounding like a broken record, and a fair few people have been debating with me on it. It’s taken me a few days but I’ve boiled down the arguments to three main ones.

The first of these is that it is only right to ensure you have your spouse’s consent before you embark on the gender transition/recognition road. As far as it’s practical to do, I agree with this. Spousal consent is a good principle to work on in all areas of a marriage, from job-hunting, moving house, child rearing and financial arrangements through to medical procedures and end-of-life care. But it’s a very different thing when the spouse is legally required to sign a document indicating formal consent.

There are many things that materially affect a marital relationship – for a good many years until now, not one of them required formal spousal consent. The state was content to assume that the two spouses had discussed actions together and reached a position of mutual agreement. The state had decided that one spouse did not own or control the other, nor could they veto any action of their spouse, nor were they required to formally consent to any such action. Now, the state’s position for gender recognition is, for whatever reason, different.

It needs to be remembered that the vast majority of relationships simply do not survive even an initial revelation of gender incongruence, let alone embarking on gender transition. A recent survey indicated that a large number of spouses actively try to obstruct someone’s gender transition.

Underpinning this argument is a belief that the trans person is inherently acting selfishly – that their worst excesses need to be reined in; that, somehow, they simply cannot be trusted to have agreed this particular path with their spouse but instead wish to entrap them in a different type of relationship.

The second key argument is that it’s a fundamental change to the marital contract so of course the spouse needs to consent. This is essentially the line the government has taken in defending spousal consent. Baroness Stowell placed great emphasis that the words “husband” and “wife” in the marriage vows were important, and that someone’s gender recognition would inherently alter one of them. When I made my marriage vows, some 19 years ago, both my wife’s name and mine were key in them – yet somehow it’s entirely possible for me to change my name (and my wife, should she choose to, hers) without requiring formal consent. Yet those were the words that identified us as individuals.

There is a conflict in the government’s logic. Baroness Stowell also made great efforts to explain that there was no distinction between same-sex and opposite-sex marriage when it suited the government to use that argument. However the “change of status” argument is also used to defend spousal consent – implying that government does indeed see a distinction.

Marriage is only one contract that a transitioning trans person has. Also common are contracts with pensions companies, who will have made arrangements based that a person is one gender and then find themselves liable for payments to a person of the other gender. This is a financial implication – yet nowhere do I see anyone seriously proposing that pensions companies also have to give formal consent to an individual’s gender recognition.

Finally other correspondents have placed emphasis on the change to the sexual relationship that would ensue following gender recognition, therefore your spouse’s consent is required. In many ways this is a variant on the “fundamental change” argument above and is actually a misunderstanding of the process.

Gender recognition can only be granted if there is proof that the trans person has been living in their “new” gender role for at least two years. To all intents and purposes, the marriage will already have existed as a same-sex one for some time already. It can take some time for spouses to work out how they really feel about the new arrangements, so some divorces don’t start for quite a while. Also genital surgery frequently precedes gender recognition, and hormone treatment may alter that aspect of the relationship some considerable time even before surgery. So when exactly should spousal consent be required – before genital surgery, before prescription of hormones?

The problem if you start down the consent for medical care line, is where do you stop? It’s good practice, but not law, that spouses are asked for consent for sterilisation procedures. What about prescribing medication that can affect one’s ability to have sex? Spousal consent before prescribing Viagra? What about someone getting a facial tattoo? After all, that affects someone’s physical appearance – and you tend to look at someone’s face far more than their genitals.

Again, underpinning this argument is a view that reduces someone to the status of their genitals. An individual’s autonomy over their own body is removed. Marriage is reduced to a functional relationship for child-rearing. There are many arguments against such a definition of marriage, such as invalidating marriages of someone who knows they are infertile.

On Wednesday I realised that, once again, society and the state see people like me as a problem, as somehow not quite human, so it becomes acceptable to make us jump through hoops as if we cannot be trusted. Our relationships are not even sacrosanct. The state feels quite happy to interfere in them too, in a way that it won’t for other people, and despite the right to privacy and family life being enshrined in law.

This “being a problem” is something I’ve battled with since transition – with family who wanted me to somehow prove scientifically that I needed to transition, with churches who were fine with me going as long as I didn’t really want to join in, with employers who suddenly saw me as a massive liability instead of an asset. Gender transition is something so horrific that people feel they need to be protected from me, or at least protect others from me. I was immediately perceived as a threat simply because of how I chose to cope with how I was born.

Tabloids repeatedly associate trans people with frauds, deviants or figures deserving humiliation. As a result it seems perfectly acceptable to objectify me in public places – make personal comments that criticise me for not conforming to someone else’s perceived ideal. The damage that all of that does to someone’s self-esteem is considerable, especially when it’s repeated day-in, day-out; year-in, year-out.

I run my own software company. I employ other people. I talk with politicians, civil servants, media big-wigs and other influential people. This year I’ve been asked to speak at a number of public events. All of these help keep my own self-esteem relatively high. But this past month, it’s been relentlessly battered. If I, from my relatively high starting point, feel pretty low at the moment, goodness only knows how other less fortunate trans people feel.

And it’s fundamentally wrong. Simply because you don’t understand someone doesn’t mean that they should automatically be treated as second-class citizens, somehow less worthy of the basic human rights protections you take for granted. If people scream that they’re hurting, shouldn’t basic compassion require that you take time to find out why and see if there’s anything you can do to alleviate it?